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22 - Applicable Ethical Framework in Commercial and Investment Arbitration

from Part IV - Applicable Law

Published online by Cambridge University Press:  18 February 2023

Stefan Kröll
Affiliation:
Bucerius Law School, Rechsanwalt Kröll
Andrea K. Bjorklund
Affiliation:
McGill University, Montréal
Franco Ferrari
Affiliation:
New York University
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Summary

This chapter examines the ethical regulation of participants in the arbitral process. The starting point is what is provided for and omitted by arbitration’s coordinating instruments, the New York and ICSID Conventions. While these conventions only expressly set out a few ethical rules, they determine the sources, obligations, forums, and alternatives related to ethics. Along with national arbitration laws, the conventions set limits on the content of the obligations that the parties can introduce into arbitral proceedings, such as institutional arbitration rules and soft law instruments. In terms of substantive obligations, they require that all participants uphold the fairness and integrity of arbitral proceedings while fulfilling their respective duties. The New York and ICSID Conventions also coordinate a multi-level network of forums to enforce these ethical obligations, the most prominent of which being arbitral tribunals. Yet, the imprecise delimitation of powers between national and international authorities on ethical issues is problematic today. The key to resolving this problem is not developing further substantive obligations, but rather better addressing the interplay between national and international frameworks regulating participants in the arbitral process.

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Publisher: Cambridge University Press
Print publication year: 2023

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